Monthly Archives: July 2012

Oral History and the Law: Boston College’s Woes
By Corey BolingWITNESS.org
July 31st, 2012

At WITNESS, the importance of negotiating informed consent within human rights video is paramount. By helping interviewees recognize the reach that their testimony may have in today’s digital age, both intended and unforeseen consequences quickly become part of the greater conversation. Education is the key.

Legal proceedings surrounding Boston College’s Belfast Project are being carefully monitored and could set a dangerous precedent for future oral history projects. The Belfast Project features frank and candid admissions from former IRA paramilitaries and Northern Irish Police have requested that US courts order the interviews to be released into the public domain. Paying particular attention to the testimony of Dolores Price, a conspirator in the 1973 bombing of London’s Old Bailey Court, Boston College could potentially be ordered to turn over transcripts and tapes that may endanger lives while undermining Boston College’s commitment to keeping the interviews sealed until the interviewees’ deaths.

Gabriel Solis, the Guantanamo Bay Project Program Director at Columbia University’s Center for Oral History (CCOH), has been following this case very closely. “One of the things that I always tell our interviewees is that the one thing we cannot protect our interviews from is a subpoena,” says Solis. “The reason why they have subpoenaed those interviews and that the government is involved is because they think that those interviews have information about an ongoing investigation.”

Interviewing over 50 ‘narrators’ including civilian attorneys, military prosecutors, prison guards, investigative journalists, and former detainees, much of the CCOH’s Guantanamo Bay Project is uncharted territory for an Ivy League institution historically focused on the development of less controversial cultural collections. “The project’s relatively new and these are new issues at our Center as we haven’t dealt with such sensitive material before. It’s only been within the past 10 years that we’ve started moving toward human rights issues, controversial issues. These are new issues for us but it’ll be interesting to see how the leadership deals with them as they come up,” says Solis.

Hoping to avoid much of the hoopla surrounding Boston College’s woes, Solis emphasizes the Center’s preemptive approach. By maintaining a tightly knit chain of custody, often times consisting of no more than three people, the Guantanamo Bay Project maintains a firm grip on all of the information it receives. But perhaps more pivotal to the Project’s success is its emphasis on transparently educating participants and revisiting consent.

Terrell Frazier, Director of Outreach and Education at the CCOH, punctuates this point. “In an oral history interview, consent is a process and it’s a consent-driven process from A-Z,” says Frazier. From the initial phone call though to dissemination (or lack thereof), every effort is made to ensure that the interviewee understands that they are in complete control. Solis explains how “At the point that we get the transcript back, we send it to the interviewee so they can take out any information that they want. They can clarify any information that they want. They can omit information. They can even add information.” And reminiscent of the terms under which Boston College promised to seal many of its IRA testimonies, Frazier adds that the CCOH also allows for “sections of that interview to be closed for many years. Or in some cases the interview can be closed until a particular person passes away.”

But Frazier argues that renegotiating consent is more than just providing interviewees opportunities for revision and suppression. “If we’re interviewing someone talking about a sensitive topic, then before the conversation gets to a level where there might be legal implications, we may pause the interview and remind the person that we don’t have protections that journalists do and that these interviews are vulnerable to subpoena,” – certainly a strategy now being discussed at Boston College.

But in a rapidly evolving digital world, the potential reach and impact of evocative testimony can easily ricochet across the information super highway. So how does the CCOH protect its interviewees? Flexing its technological muscle, dedicated specialists within the greater Columbia University Libraries system are capable of removing previously posted online material by leveraging personal relationships already established within Google. “We do have the ability to pull the interview and the records from our online database. And with some work, we could suppress the record from Google itself so it wouldn’t come up in a search,” states Frazier. But in a highly searchable world, Google’s willingness to remove results – even when justified by a critical need – raises eyebrows as to the impact of the company’s growing power in increasingly diverse arenas.

But what about the accuracy of what is being said? How does an oral history project authenticate the testimonies it collects? Of course, extensive background research, comparisons of multiple interviews, and an elongated interview process all help to cross-check for accuracy, but Solis questions the need:

There’s a difference between journalism and oral history. We think there is meaning in all kinds of stories even if they’re inaccurate. Why do people choose to interpret their past a certain way? Even if it can’t be reconciled with the historical record or with fact? We think that there is meaning in silences, when people are speaking and then they stop. Or the way that their voices rise and fall; we find meaning in that.

Unfortunately for some of the interviewees in the Belfast Project, so do the Northern Irish Police.

Intrigued by the intersection of oral histories and video advocacy? Keep an eye out for my upcoming post highlighting StoryCorps’ work across the US.

Corey Boling is a graduate student in Museum Anthropology at Columbia University and a Program Intern at WITNESS.

The Belfast Project at Boston College has collected an enormous archive of material on Northern Ireland over the past 40 years. Its most controversial project is a research programme that has seen people directly involved in the troubles give recorded testimonies of their experiences.

The interviewees are primarily from a republican background but also includes some loyalists. The recordings were carried out by former IRA volunteer and prisoner Anthony McIntyre in conjunction with the journalist and author Ed Moloney. Those interviewed participated on the basis that the tapes would be stored in the archives of Boston College and published only after their deaths.

This caveat of publishing posthumously was the basis of the project as the interviews were for the main about illegal activities. The first glimpse of the historical significance of these recordings was evident in the release of “Voices From the Grave” a published account of loyalist David Irvine and republican Brendan Hughes’ testimonies. These were first hand accounts not only of activities but also the motivations of two key figures in their respective movements. While at times they make very unpleasant reading, from a historical point of view these testimonies are a great insight into why people got involved in paramilitaries and how the troubles not only began but evolved. This project has the possibility to bring our understanding of the troubles to a new level given these direct testimonies of those involved.

Why is it in the news?

Boston College was recently subpoenaed by the US Department of Justice working with the Historical Crimes Unit of the PSNI (the Police Service of Northern Ireland) to hand over the recording by Dolores Price, a former IRA volunteer. Price as admitted to being involved in the killing of Jean Mc Conville. Jean Mc Conville was a widow and mother of ten who was killed by the IRA in 1972 and her body was buried in secret amid accusations she had been an informer for the British Security Forces. This has been strenuously denied by her family.

The Historical Crimes Unit investigating the killing have successfully won an order in US court forcing the tapes to be handed over. This decision is being challenged in the courts by Anthony Mc Intyre and Ed Moloney. Mc Intyre has argued here that the decision is disastrous for history and that they are politically motivated.

It is difficult to exactly understand specifically why the PSNI want the tapes now given Jean Mc Conville’s murder was largely ignored for decades and these tapes are very unlikely to be admissible as evidence in court. In terms of history the consequences are unfortunately all too clear and the impact on oral history cannot be understated.

As Anthony Mc Intyre himself points out the role of historians is not to collect information for the state. Histories and historians if to be worthwhile must be independent. If it is not we will increasingly get served up soviet style history where there is only one version – that of the state. In a conflict like that in the North it is crucial we get the views of others given the direct role of the state in the troubles.

An all too common assumption is that of the benign role of the state in the conflict. The portrayal of the British and Irish governments as mediators in a vicious sectarian war is deeply problematic given our historical understanding of events. It is clear now the British government had a direct involvement not just through the army and police but through the role of its agents who were involved in numerous murders. The most notorious was perhaps Freddie Scappaticci a British agent who was also an active member of the IRA internal security unit the so called “nutting squad”. State involvement was not just limited to infiltration of republicanism by any means. Currently Mark Haddock a former UVF commander is now in court for murder was also a British informer. It is widely suspected these individuals were protected despite the fact they were involved in several brutal killings.

Due to such involvement our historical understanding of these events if to be dependeable can not be based on records the British of for that matter the Irish government as they are not neutral or dependable sources. Indeed recently it emerged the British government had “sanitised” its accounts of its brutal suppression of the Mau Mau rebellion in Kenya in the the 1950′s by destroying documents. In this light it is crucial we have the views from all sides and perspectives and the only way to do this is through a project like that at Boston College which offers confidentiality.

The historical importance of such evidence was seen in Brendan Hughes’ account when he revealed his understanding of how British Intelligence had infiltrated in the IRA in Belfast and how they were involved in murders, something that the British or Irish government records are unlikely to contain. To understand this mirky history we need a “warts and all account”. In this light testimonies will involve an admission of guilt if they are to be honest and therefore need to be confidential.

Conclusion

While it is entirely understandable that the Mc Conville family want to find out what happened to their mother the Boston tape are not the solution as they are not evidence. The PSNI should not try resolve their and their predecessors the RUC’s, shortcomings by attacking and effectively destroying the work of others. The tapes were recorded on the basis that they would not be used in this manner and if they are, it will make future projects of this nature impossible. If successful a similar project focusing on loyalist organisations would reap great dividends.

Sadly the reality is that the P.S.N.I.’s actions have already done massive damage to oral history projects on modern Irish history. It is difficult to accurately assess the impact of this case. The damage will only be fully evident in perhaps 40 or 50 years if, when most protagonists involved in the troubles have carried their stories to the grave and we will only then realise what has been lost.

Indeed as Ireland prepares to celebrate its centenaries of 1913 – 1922 period its worth remembering our understanding of these events is based on the archives of a similar project. Between 1947 -1957 the Bureau of Military History conducted interviews with people who had been involved the Irish struggle for Independence between 1913 – 1921. Over the ten years 1773 witness statements were collected giving a key insight into events of the period. These testimonies were recorded on the promise that none were to be released when the last participant died which saw them released in 2003. To understand the troubles we need a similar resource and given the specifics of the situation it is unlikely either the British and Irish government will give a voice to those directly involved in either the IRA or UVF. In this light it is essential to keep Boston’s archive beyond the reach of the PSNI.

Readers in the US can contact their local congressperson , and ask them to follow Chairman of the Foreign Relations Committee Senator Kerry’s lead on the issue in asking Secretary of State Hillary Clinton and Attorney General Eric Holder to secure a withdrawal of the subpoena.

If you live in the UK

Readers in the UK can write to Secretary of State for Northern Ireland Owen Paterson and Home Office Secretary Theresa May informing them of the chilling effect this is having and the damage this subpoena is doing, and ask them to withdraw the British MLAT (Mutual Legal Assistance Treaty) request for the subpoena.

If you live in Ireland.

Irish readers can contact Minister of State at the Department of Foreign Affairs Joe Costello and the Tánaiste and Minister for Foreign Affairs Eamon Gilmore to express their dismay at this action and ask them to call for a British withdrawal of the subpoena request.

Americans’ 1st Amendment right to know trumps foreign treaty agreements
By James J. Cotter III and Eamonn DornanIrish American News

A recent US Federal Appeals Court decision upholding subpoenas of research by two Boston College scholars into “The Troubles” has grave implications for political stability in Northern Ireland but it also highlights the threat to Americans’ rights to free speech, a concern that will be shared, we believe, by the Irish people and all who value this most sacred and basic of human rights.

Academics—and journalists—take considerable risks in providing the American public with insightful information into the thoughts and processes of combatants in the world’s trouble zones. They deserve protections that the Court’s recent ruling denies.

In this case, the British Government, with the acquiescence of US Attorney General Eric Holder, sought interviews that IRA combatants contributed to the “Belfast Project” and held at Boston College under the strictest conditions of security and confidentiality. We believe that these materials should be kept sacrosanct, and that their disclosure threatens to swing a wrecking ball through a painstakingly-constructed Irish Peace Process that Americans, as well as Irishmen, can rightly view with the pride of ownership.

The Belfast Project researchers, along with the American Civil Liberties Union of Massachusetts, made a number of compelling arguments advancing the free flow of information to the American public in the face of a subpoena from a foreign government, namely:

British law enforcement could not demonstrate that the subpoenaed materials were essential to a good faith criminal investigation, as opposed to a politically-motivated propaganda exercise;

the British made no attempt to obtain the information from less sensitive sources within its own jurisdiction, which they easily could have, instead turning the matter to our Attorney General to sort out;

American citizens subject to a foreign subpoena will be deprived of their due process right to be heard in defense of government action and to raise allegations of bad faith on the part of the foreign government.

Nonetheless, the Court of Appeals decided that, pursuant to a treaty between the U.S. and U.K., the researchers did not even have the right to be heard or to assert a challenge that the request for evidence into the 40-year old killing was not the result of a police investigation made in good faith.

This decision means that our universities and citizens will be that much less informed, having been robbed of testimony from combatants in trouble zones throughout the world.

It also means that American citizens paradoxically have fewer rights when served with a subpoena from a foreign nation than when served with one from a U.S. law enforcement agency. Depriving U.S. citizens of their constitutional right to be heard on government actions which might adversely affect their interests was not the result anticipated by the US Senate or the President when the mutual legal assistance treaty with the British was ratified. In fact, this matter is of particular concern to Senator John Kerry, Chairman of the Foreign Relations Committee.

Some commentators, such as Boston Globe columnist Juliette Kayyem (“BC case throws cold water on IRA, academia,” July 12) took a rather simplistic view of the world in relation to the release of these records when she wrote that “there should be no exception for ‘good’ terrorists.” But, of course, there have always been exceptions for “good terrorists” – those paid by the British government who have enjoyed immunity for the murder of innocent Irish nationalists, including human rights lawyers. Where stands, for instance, British prime minister Tony Blair’s promise of a full public inquiry into the killing of Pat Finucane?

The U.S.-sponsored Good Friday Agreement was designed to end the days when a partisan police force could engage in politically-motivated prosecutions of participants from only one side of the combat.

Americans cherish their history. Our clients and others will continue to fight to protect the hard earned rights enshrined in our Constitution, including the rights of U.S. citizens to be heard when our government acts adversely to all our interests. We hope and believe that the people of Ireland will share in our quest.

James J. Cotter III and Eamonn Dornan are attorneys for Boston College researchers Ed Moloney and Anthony McIntyre.

By any standards, the decision of the 1st US Circuit Court of Appeal to order Boston College to hand over recordings of taped interviews with dozens of former IRA and UVF members, which were conducted on the basis of confidentiality, poses a threat to the safety of those involved is bizarre and has significant implications for future academic and journalistic research

These interviews were recorded and collated for Boston College’s Belfast Project and participants were assured that the interviews would not be published while they were alive. British prosecutors, in collaboration with the US Justice Department, want access to the tapes to aid their efforts to investigate past crimes in Northern Ireland. Perhaps the British government might display unequivocal moral leadership on this issue and lead by example.

In 1984, following a string of allegations about a shoot-to-kill policy in Northern Ireland carried out by the RUC and British Army, the British Government set up the Stalker/Sampson Inquiry. Families of those killed in this alleged shoot-to-kill policy are still awaiting justice. Despite a four-year investigation into these allegations, the final Report has never been published.

Then in 1989, the Stevens Inquiry was established by the British government to investigate claims of collusion between the RUC, M15, British Intelligence forces and loyalist paramilitaries in Northern Ireland’s ‘dirty war’. Following a six-year Inquiry by the Commissioner of the London Metropolitan Police Service, Sir John Stevens, culminating in three separate reports, only 19 pages of the 3,000-page final report were made public.

Furthermore, there have been three Joint Oireachtas Committee reports into the Dublin and Monaghan bombings of 1974. Since then the democratic pursuit of justice for the 33 innocent people killed in the biggest mass murder in Irish history has led to deadends and cul-de-sacs.

Requests from Mr Justice Henry Barron in the Final Report of the Commission of Investigation into these bombings for documentation which was in the possession of the British government, and which would have been vital in establishing the identity of those responsible for this atrocity, were refused.

Even recent requests from Taoiseach Enda Kenny to David Cameron to release files relevant to these cases were refused.

Such double-standards.

If the British government is to be seen to be consistent, fair and open in its application of standards of justice, why does it not apply equally the judicial principles it demands from Boston, to Belfast, London, and Dublin?

I agree that the decision by the US Court of Appeals for the First Circuit, regarding taped interviews with combatants in the Irish conflict that are held by Boston College, will require rethinking of how best to conduct such important projects (“BC decision should lead others to amend oral-history pacts,” July 11).

Unfortunately, there were other more important arguments made by the authors of the history project, which the court chose to ignore or dismiss.

This was doubly significant because, as the court acknowledged, this was the first challenge in this circuit to the mutual legal assistance treaty between the United States and the United Kingdom.

Objections to the British government’s misuse of the treaty were alluded to by Judge Juan Torruella. He noted that the British request could be denied for two reasons: requests involving political offenses (indeed in 1972 British law provided for such offenses) and requests that, if honored, would undermine important public policy, such as the 1998 Belfast Agreement.

At the time of the offense in question, the British Army was crushing the civil rights protests in Northern Ireland. Resistance to their brutality was considered patriotic.

American support for the 1998 peace pact was based in part on the release of prisoners and many accused of murder — loyalists as well as those in the Irish Republican Army.

Thus I view the decision and Torruella’s language as underscoring the argument that BC should not be compelled to disclose the information it holds.

Michael J. Cummings
Albany, N.Y.

The writer is a member of the national board of the Irish American Unity Conference. His views here are his own.

BC and the Belfast Project: A Scholar’s Privilege to Disobey
Harvey SilverglateForbes
23 July 2012

Much ink has been spilled, but little insight exhibited, in the ongoing imbroglio stemming from Boston College’s, the news media’s and the federal courts’ failure to accord robust First Amendment protection to oral history scholars who have recorded their interviews of participants in the Irish “Troubles” and who thereby seek to preserve for posterity nothing less than the lessons of war and peace. Now, a federal appeals court in Bostonhas issued an opinion that holds that the interview recordings and transcripts compiled by scholars and housed in BC’s library under a seal of confidentiality for the lifetime of each interviewee must be turned over to the Department of Justice for transmission to the Northern Irish investigative authorities. This is a profoundly reckless and short-sighted ruling, the consequences of which are likely to roil a broad range of scholarly, as well as journalistic activities.

To recap: Beginning in early 2001, journalist-scholar Edward Moloney and fellow researcher Anthony McIntyre, a former IRA member with a doctorate in the history of Irish Republicanism, entered into an agreement with Boston College stipulating that BC would employ them in the creation of the Belfast Oral History Project, an oral history of the bloody battles between the Provisional Irish Republican Army and the Northern Ireland Loyalist paramilitary forces that produced decades of some of the bloodiest sectarian violence in recent history. With the subsiding of that violence and the achievement of a historic peace (a work still in progress, however, and onewith remaining open wounds), Moloney and McIntyre saw an important opportunity for the preservation of the memory of that conflict through BC’s promise to sponsor the collection and housing of the raw materials of the oral history research the scholars would conduct.

In a formal writtencontract, BC and the scholars agreed that the recordings generated by the scholars’ interviews of participants would be heldconfidentially in BC’s John J. Burns Library. Each interview would beavailable for inspection only upon the death of the interviewee. This agreement required the scholars to give each interviewee his own separate contract “guaranteeing to the extent American law allows the conditions of the interview and the conditions of its deposit at the Burns Library, including terms of an embargo period…” (emphasis added). Part of the problem that emerged later was that the subsidiarycontract thatBC’s lawyers drew up for the scholars to enter into with the individual interviewees did not make any such exception based on what US law allow. The scholars instead had given the interviewees, perhaps naively in light of BC’s drafting oversightand self-imposed institutional limitations, unequivocal assurances of confidentiality.

Those assurances became the center of controversy in May and August of 2011, when the Department of Justice served BC with court-issued subpoenas for materials generated by the Belfast Project regarding the 1972 murder of suspected informant Jean McConville, which had been formally requested by Northern Irish law enforcement authorities under the United States-United Kingdom Mutual Legal Assistance Treaty. BC responded to the subpoenas by turning over transcripts of the interviews to U.S. District Judge William Young for in camera review – in other words, a private review in his chambers, in which Judge Young would decide which documents were responsive to the subpoena and whether any of them might be protected by a First Amendment “scholar’s privilege” akin to that more familiarly accorded to, or at least claimed by, news reporters.

This case raises profound questions of whether American constitutional law will honor, to at least some degree, the right of scholars,like that of newsmen, to conduct sensitive research outside of the reach of governmental investigative and prosecutorial authorities. Yet the academy and the news media generally have been inexplicably remiss in coming to the support of the Boston College scholars, and even BC has been lukewarm in supporting them. The American Civil Liberties Union of Massachusetts (ACLUM) filed a friend-of-the-court brief supporting the scholars, pointing out to the U.S. Court of Appeals in Bostonthe importance of the First Amendment privilege at issue not only for scholars, but for newspaper reporters as well. Yet “Injustice Department” has been almost alone in the general readershipnews media inpointing out the damage that would be done to oral history, an important genre of scholarly research, if the assurances of confidentiality extended by the scholars to their interview subjects are not honored by the courts.

The BC scholars, if they had had the benefit of hindsight, likely would have trusted no one but themselves to house and protect their tapes and transcripts, but there was simply no way they could have anticipated how the litigation challenging the subpoenas would have unfolded. How could they have known that BC would not even bother to challenge the first subpoena seeking materials “in the matter of Dolours Price,” a confessed former IRA member suspected of involvement in the McConville murder? Or that when BC finally challenged the second subpoena that sought an even longer list of materials, its lawyers would commence their challenge by turning over the materials to the federal district court judge so that he could examine them in camera in order to determine which ones fell within the request of the Northern Irish authorities?

BC’s turn-over of the materials might seem to have been merely an expedient courtesy extended by BC’s lawyers to the judge – after all, if he examined the transcript in the comfort and convenience of his chambers and found none of the materials responsive to the subpoenas, the case would have ended quickly in BC’s favor. In reality, immediately turning over the transcripts doomed the scholars from the get-go. When thejudge found that at least some of the materials were covered by the subpoena (as he was predictably going to do, given the terms of the subpoenas and the subject matter of the interviews), and whenhis turn-over order was affirmed on appeal – as finally happened on July 6 – the scholars had no opportunity to take more radical action to protect the confidentiality of their interviewees. They could not, in other words, make a conscientious decision tocommit an act of civil disobedience by refusing to obey the court order to turn over the tapes. The court already had possession of the contested materials, making a sham of the scholars’ absolute assurances to their interview subjects that they would keep the tapes absolutely confidential until the death of each interviewee.

Nobody realistically expected that Boston College, as an institution, would engage in civil disobedience in order to avoid turning over the scholarly materials to the court if, after litigation through an appeal, it was ultimately ordered to do so. Institutions such as colleges and universities, unlike individuals, have little leeway in disobeying a court order, whether on grounds of conscience or for any other reason. A judge, after all, has the power to impose rapidly escalating fines that could bankrupt even the wealthiest organization; the trustees of most institutions would in almost every situation conclude that fiduciary duty precludes letting the organization collapse merely because some principle is at stake. This is why organizations rarely should be trusted with the possession of absolutely confidential materials that might be subject to subpoena by governmental authorities. (The individual, it is acomfort to some of us to know, can still accomplish things that even the largest organizations cannot or will not risk.)

Indeed, as Chris Bray, a UCLA doctoral candidate in history who has been closely watching the Boston proceedings, told The Chronicle of Higher Education,“Academic freedom exists to the extent that you are willing to pay a price for it,” addinga challenge that BC obviously chose not to take up: “Journalists are willing to go to jail to protect sources. What will Boston College do?” The answer to Bray’s question is that BC had effectively limited its options from the day that it turned over the materials to Judge Young. From that point on, it did not have the option of engaging in an act of civil disobedience even if it chose to risk the institution’s endowment in doing so. Worse yet, BC’s action deprived the scholars of the opportunity to take possession of the Belfast Project materials and refuse, as a matter of principle, to relinquish them to federal authorities.

And therein lies the most profound lesson of this case: If documents are truly sensitive – if, for example, prematuredisclosure of interview tapes could well result in violence being wreaked against both interviewee and interviewer – it is better that an academic institution not agree to exert control over them. That should be left to individuals willing to risk the consequences of adhering to conscience.

Journalists and scholars alike have chosen imprisonment rather than a betrayal of those who spoke to them under a promise of confidentiality. Perhaps themost prominent example in recent years is the case of Judith Miller, then a reporter for the New YorkTimes. During the grand jury investigation into the leaking of CIA operative Valerie Plame’s covert identity, Miller was alleged to have knowledge of the source of the leak of Plame’s undercover status. Instead of revealing the name of her source or turning over her notes to prosecutors, she refused to cooperate with the investigation and was held in contempt of court, ultimately spending three months behind bars until her source, I. Lewis “Scooter” Libby, gave Miller permission to disclose his identity. At the time, Times executive editor Bill Keller described Miller’s actions as a “brave and principled choice.”

The same courage exhibited by newspaper reporters who have been denied protection underthe legally controversial “reporter’s privilege” has been demonstrated by some academics relying on the similarly amorphous “scholar’s privilege.” Rik Scarce, at the time a doctoral student at Washington State University, chose to spend five months in jail for federal contempt-of-court rather than betray “earth liberation” activists who had agreed to be interviewed by him pursuant to a promise of confidentiality. Scarce, who is now a sociology professor at Skidmore College, told the Chronicle of Higher Educationthis past Februarythat when a researcher promises confidentiality to those who agree to answer a scholar’s questions, “You stand by those statements.”

“What you don’t do,” continued Professor Scarce, is “what Boston College appears to be doing.” Professor Scarce pointed out the obvious: Unless the confidentiality of research interviewees is honored, their willingness to participate will dry up, whether they areinvolved in the radical environmental movement or a violent sectarian struggle such as that which convulsed Ireland. (And, in a turn of events instructive to the BC case: when the coercive jailing of Scarce did not loosen his mouth, the judge gave up and released him.)

Of course, structural differences between the publisher-journalist relationship and the university-scholar relationship may explain – though not justify – BC’s behavior. The reason Bill Keller could tout his praise of Judith Miller’s integrity and fortitude in front of a bank of microphones and not from his own jail cell is because the Times followed its shrewd practice of requiring its reporters to maintain possession of their own notes. Had Miller’s notes been held by the Times itself, prosecutors could have jailed the editors and publishers for contempt of court, or, worse, they could have used the aforementioned “tool” of sharply escalating fines to confront the corporate entity with a choice of either bankruptcy or capitulation. This distinction between an individual’s ability to withstand a court’s coercive contempt powers and the pliability of an institution such as a newspaper or a university that can be bankrupted and effectively put out of existence points to a fundamental flaw in the arrangement between BC and the scholars: the scholars promised their sources absolute confidentiality (after all, the physical safety of both interviewer and interviewee was at stake) and were willing to entertain the option of civil disobedience in order to honor the agreement, whereas BC promised its scholars confidentiality within the confines of the law and could therefore refuse to draw lines in the sand in the event the lawmen came calling. And indeed, when the call did come, it became clear that the Belfast Project’s materials should not have been entrusted to those who had made the weaker pledge.

The all-too-expected result of BC’s immediate and unquestioning turnover of the materials is that Judge Young and the three-judge panel of the Court of Appeals affirming his decision rather blithely failed in their judicial duty to weigh properly the needs and interests of the UK investigators versus those of the scholars. It was much easier for the courts to simply turn over the materials than to make a searching inquiry into, and analysis of, the balancing of legal, scholarly, and law enforcement interests involved.Without questioning either Moloney or McIntyre, Judge Young naively took at face valuethe word of the Northern Irish prosecutors and of the Department of Justice that the materials were essential to a murder investigation being conducted in good faith and that the scholars’ work product was essential to that investigation. The courts did not question in detail the Northern Irish authorities, nor their American proxies at the Department of Justice, as to whether a good faith basis existed for the criminal investigators’ extraordinary step of seeking to force scholars to turn over work-product that had been gathered on the basis of a scholar’ssacred oath of confidentiality.

Thus, there wasno balancing of the rights of the BC scholars, nor of their interview subjects, versus those of the police. There was no consideration given to the problems created by forcing a major academic institution to abandon the interests of its scholars. The federal courts in Boston simply plowed ahead, rashly ordering the turnover to the Northern Irish authorities of the work-product brought into existence only because of a pledge, by the scholars, of absolute confidentiality – a pledge rendered moot the moment BC’s lawyers turned the transcripts over to the judge for inspection. Now, with lives at stakeand the courts blind to a proper balancing of interests, it is clear that that first error could not have been graver.

(Zachary Bloom provided research and editorial assistance for this article.)

Those who were shouting for the Sinn Fein leadership to be heard on the 40th anniversary of Bloody Friday were really asking for something much more specific.

If all they wanted were words from the republican leadership, then they could have found them in the commentary of Declan Kearney.

There was no need for a dictionary to understand what he was saying.

In an interview with me for the Belfast Telegraph the Sinn Fein National Chairman described Bloody Friday – that day of bombing carnage across Belfast – as “unjustifiable”.

That means indefensible, incapable of being justified or explained, something that Kearney said “shouldn’t have happened”.

“I think there is no republican who would associate him or herself to the view that Bloody Friday should have happened.

“Bloody Friday shouldn’t have happened,” he repeated.

Into his commentary, he coloured in the context of that period – not just Bloody Friday, but Bloody Sunday and the many other Bloody Days that contributed to the highest death toll in any year of the conflict.

That period, he said, should “serve as a stark reminder and monument to this generation of what we can never go back to experiencing again”.

“So Bloody Sunday, Bloody Friday and all of those events do have a context,” Declan Kearney continued.

“They do have a context of their time – a war which had just begun to break out and erupt on the streets of the north and with that came the carnage that that type of war brought,” he said.

The IRA bombing blitz that was Bloody Friday took nine lives and left well over 100 injured.

When we listen to those families and people who were touched by the cold and brutal hand and the orders and actions of that day, we understand how pathetic and trite is that comment that suggests we draw a line.

There is nothing so simple, and nor should there be; no such easy escape from those decades of war – not for the IRA and not for anyone else.

Kearney was absolutely right when he said the past “can never be about one event, or one individual or one incident”.

“We came through a collective experience,” he said.

There were those who chose to ignore his interview – those in politics and the media who were not really asking for Sinn Fein to be heard, but rather for the party President Gerry Adams and Deputy First Minister Martin McGuinness to present themselves for interview.

Declan Kearney was seven on Bloody Friday, while Adams and McGuinness were old enough and important enough to have been part of secret IRA talks with the British Government just a few weeks earlier.

So, what was being demanded was an explanation from them.

There would have been questions about who gave the orders on Bloody Friday, who sent the ‘volunteers’ out with the bombs and who would answer for the war crimes of that day.

While those are perfectly reasonable questions the answers are never going to be given in any interview that focuses on one event or one individual or any one day of a violent conflict that was spread out over several decades.

We are also watching a tit-for-tat battle open up over investigations; the argument being that if soldiers are to be probed for their actions on Bloody Sunday, then so too should republicans over Bloody Friday.

It is hard to argue against that argument except to say that this far into a peace process police investigations are not the way to deal with the past; not the way to achieve the information and explanation that is being sought.

We need to ask ourselves, do we want to fill the jails again…

Fill them with republicans, loyalists, police officers, soldiers, with those who worked in Special Branch and the Security Service MI5, with the agents and handlers and managers and policy makers in that intelligence world, with politicians, officials and many others.

If that is what we want, then let us have it all.

Open up all the files, put everyone else under the same microscope as Adams and McGuinness, and examine every day in the same way that the bloody headline days are scrutinised.

How many of those bloody days will have the fingerprints of the UVF’s most senior leader on them – in terms of orders given?

Let us find out was he a paid agent of the Special Branch, what he was paid for and by whom, and was he being paid when he sat in rooms deciding on life or death?

Let us also hear what the handlers and their managers have to say.

If there are to be investigations then let the police pull them all in, including the police.

This conflict was not just about the republican and loyalist “terrorists”.

There were others who did not wear masks or balaclavas, but who presided over killing; who were part and parcel of what happened and players in the dirty war games.

They are people who are not scrutinised in the same way as Adams and McGuinness and that senior UVF leader.

The past is being used as a political play thing – used by all sides when it suits, and that needs to stop.

So, what could happen in terms of another approach?

The First and Deputy First Minister could call in a team of facilitators headed by a prominent international figure;

That team to meet with designated representatives of all sides – republican, loyalist, security/intelligence, political parties/ governments, churches/media and others;

These meetings should establish levels of co-operation in any information gathering process, the possible mechanisms for questions and answers, recommend whether the process should be private/public, make recommendations on amnesty/non-prosecution based on levels of co-operation relating to information;

International team should design process including facility for story-telling and report to Robinson/McGuinness;

They decide final approach taking decisions out of the hands of the British/Irish Governments. It means the process is internationally designed but then jointly endorsed at the highest levels of local politics.

The former Methodist President Harold Good understands the importance of doing something sooner rather than later:

“To wait another 40 years, by which time even the most recent victims are likely to have departed this life, taking their pain with them, must not be considered to be a viable option,” he told the eamonnmallie.com website.

“We owe it to them, as well as to our children, to lift our peace process to a new level in our search for reconciliation and healing towards the securing of a lasting peace on this our island home,” he continued.

“It will take time for us to find the right words and a mutually acceptable process to address all of the issues related to our contested past.

“To begin that journey now would surely be the most appropriate way of reflecting upon what happened on all such days as ‘Bloody Friday’ and ‘Bloody Sunday’,” he said.

The politicking needs to stop, the petty point scoring, this playing with the past, and we need a process that finally takes all of this out of the hands of the police.

It was a decade ago that the former Chief Constable Sir Hugh Orde talked about finding a way to close the book, and doing so with dignity and in a way that best helps the victims.

Forty years after the bloodiest days of our wars, this is the real challenge.

An interesting showdown, with potentially important ramifications for both journalism and academia, has been slowly unfolding over the course of several months, involving a journalist in the middle, paramilitary soldiers seeking to tell the truth on one side and the PSNI and the families of the so-called ‘disappeared’ on the other.

The controversy circles an academic historical endeavour known as the ‘Belfast Project’, conducted by Boston College, whose aim is to create an oral history of the Troubles in Northern Ireland, a history which would offer a much more frank and realistic view of the conflict, from both sides of the coin. Paramilitary volunteers from either side were interviewed for the large scale project. None of the Republican interviews, however, were authorised by the IRA. In fact, the only reason they were given by the participants was on the condition that they be released only after their deaths. Understandably this was because the IRA was and is very secretive and controlling, and those interviewed revealed operational secrets, the IRA’s methods and often criticised key decisions and people within the organisation. At present, the interviews are kept under lock and key at the college. However, on July 6th the first circuit court of appeal ruled that the College and Ed Moloney, the journalist in charge of the project, didn’t have the right to promise to withhold the information they were given, and have ordered that information be turned over to the PSNI by next month. This test case has brought out academics and journalists decrying the court’s decision, proclaiming source protection as sacred. The National Union of Journalists in particular, which is a joint British-Irish organization, has condemned the ruling. General Secretary Michelle Stanistreet has argued that the ruling has “significant implications” for academic and journalistic research, while others have criticised the College for not acting like other journalists and protecting their sources to the point of going to prison.

One of the main reasons the PSNI want to get their hands on this treasure trove of information is to help them discover what happened to certain people during the conflict, a collective known as the ‘disappeared.’ This is the name that has been given to sixteen people who vanished during the Troubles at the hands of the IRA, believed to have been abducted and killed, then buried in shallow graves. In 1999, the IRA admitted to killing nine of the victims on that list, and gave up the burial sites, although only three were found at that time. Since then, a further four bodies have been recovered. The most infamous of these cases was that of young mother, Jean McConville, whose body was finally discovered in 2003 by a family out on a walk, a mile from the location the IRA had given for her grave. McConville was born into a Protestant family in East Belfast though converted to Catholicism when she married her husband, Arthur. One of her sons, Robbie, was in Long Kesh for Official IRA related activities although he defected to the INLA in 1974. In December of 1972, she was abducted from her home by 12 members of the IRA, men and women, and killed by a single bullet to the back of the head, her remains buried on a nearby beach. The IRA refused to admit responsibility for many years, and then claimed that McConville had been a British spy, passing information on local republicans to British security forces through a radio transmitter. Her children have consistently rejected this claim, and have repeatedly called on the IRA to clear their mother’s name. An official investigation revealed no evidence to prove the IRA’s claims. Enter Boston College and their Belfast Project. One of those believed to be have been interviewed, Dolours Price, could reveal she was part of the murder as the driver of the car which took McConville to her death, and more importantly, the role of Gerry Adams in all of this. Such allegations concerning Adams are nothing new. In Voices from the Grave, based on two interviews from the Boston project, former IRA operative Brendan Hughes said as much of Adam’s role, claiming that it was Adams who established the IRA unit which killed McConville, and he who gave the order for her secret burial, to avoid the negative publicity surrounding the murder of a women and the orphaning of her children.

But the families of those disappeared by the IRA during the Troubles aren’t the only ones who could be affected by the court’s ruling. Those still living ex-IRA members and their families could be in for trouble should their testimonies reach the light of day. Carol Twomey, wife of Anthony McIntyre (former IRA gunman who conducted the interviews) believes that her husband and other ex-IRA men will risk being killed should the interviews be handed over, and used to secure prosecutions. Retribution, she argues, is a very real fear for men who have been branded by some as ‘touts’ for revealing IRA secrets.

Then of course there’s the impact on Northern Ireland and the peace process to be considered. The country may be at peace but nobody can deny it isn’t somewhat shaky. If Hughes’ allegations are confirmed by a second IRA member’s testimony, given in the knowledge it wouldn’t be revealed until after her death, what does this do for the stability of Northern Ireland and its government, bearing in mind that Gerry Adams always shrugs off accusations of IRA membership, and leadership. It’s hard to predict the reaction from the Republican camp. A Northern Irish government which is dependent on its members possible past criminal lives being ignored isn’t exactly a solid foundation in the first place. But it has worked thus far. And an appeal is already in the works. Several prominent politicians in America, including the former presidential candidate John Kerry have lobbied for the interviews to remain sealed. It just might stick and it could be years before the Boston tapes see the light of day, and all those involved are dead and buried, and a new generation will have to deal with the mistakes of their forbearers.

So, to reveal or not to reveal? Do we make an attempt to forget our past in the interest of the future or do we strive to excise all of its demons. It’s a tricky one. How do you decide which is more important – the need for truth and closure on the part of Jean McConville’s family, and any others who might have something new to learn about the disappearance of their loved ones or the fact that to reveal the identities of any former IRA members who participated in the Boston project is to pass a very possible death sentence on them. Some might argue that death is what they deserve for the activities they and their Loyalist counterparts were involved in during the Troubles but to essentially have them killed makes us no better than what they are and were. The truth shall set you free, it has been said. But in this case, perhaps it might just do more harm than good. Should Gerry Adams be finally proven to be an utter liar, should he be proven to have been in the IRA command when he said he wasn’t, such a thing wouldn’t be a terrible event by any stretch of the imagination. But if Boston College can be forced into giving up these precious oral histories of such an important and tragic part of our history, where does it stop? So many hidden histories, so many stories are dependent on the assurance that can be provided by the interviewer that the identity of their source will be protected at all costs. So who in their right mind would ever again trust a journalist or in particular an academic into telling their story?

No, let sleeping dogs lie, as they say. Wait until those involved are dead and gone. With any luck, Gerry Adams and co will still be alive when that time comes. If not, then we can see the contents of that historical treasure trove for ourselves, and history can be the judge of it all.

The killing of Jean McConville has echoed down the decades with as much resonance as any death suffered during Ireland’s Troubles.

In December, it will be 40 years since the widow and mother of ten was taken from her home in West Belfast’s Divis Flats, interrogated, brought across the border and shot dead.

Those who sent her to her fate were members of the IRA who believed that she was an informer for the British army. Her body was eventually found in 2003 at a beach near Carlingford, Co Louth. McConville’s family have in the past denied she was an informer.

McConville’s death created little stir at the time, largely because it occurred against a very different backdrop than the present day. She died in 1972, the single bloodiest year in the Northern conflict, when almost 500 people were killed. No one has ever been convicted of McConville’s murder and, for a long time, it seemed as if no one ever would be.

But that may be beginning to change. Her case is now attracting attention on both sides of the Atlantic, reaching the pages of the New York Times and the airwaves of America’s National Public Radio.

The search for the truth about what happened to McConville is raising complicated questions. It now involves a British government attempt to override promises of confidentiality made as part of a sensitive academic project.

This has led to debates about the reach of government, the extent of the public’s ‘right to know’ and the capacity of researchers, academics and reporters to protect their sources.

That’s not all. As is so often the case in the North’s hall of mirrors, the question of whether there is really an ongoing good-faith effort to solve her killing – or whether there are other, shadier motivations at play – is hard to answer.

Troubles, tapes and threats

The spotlight that has been shone onto the case has exposed numerous divisions, enmities and straightforward differences of opinion. But some facts are clear.

During 2000 and 2001, journalist and author Ed Moloney, then the Northern editor of the now-defunct Sunday Tribune, began discussions with Boston College about conducting an oral history project pertaining to the Troubles.

Boston College – commonly known as ‘BC’ in the United States – had an obvious interest in such an idea, being proud of its reputation as the pre-eminent US university in the field of Irish studies.

The outlines of the proposal were simple – or so it appeared at the time. Under the aegis of BC, Moloney would hire researchers to interview former combatants, both republican and loyalist, about their experiences. These people would be induced to talk, in part by the promise that their testimonies would not be released until they died, unless they expressly permitted otherwise.

The project got fully under way in 2001. According to BC spokesman Jack Dunn, the materials collected and now held under lock and key in the college’s Burns Library, amount to a series of interviews with “26 former IRA paramilitaries and approximately 20 to 24 recordings of interviews with former UVF [Ulster Volunteer Force] members”.

The Belfast Project, as it was known, was completed in 2006, to the apparent satisfaction of everyone involved. Four years passed. Then the roof fell in.

In 2010, two Belfast-based newspapers carried stories about Dolours Price, a former IRA member who had been jailed with her sister Marian and the now-prominent Sinn Féin representative Gerry Kelly for the 1973 bombings of London’s Old Bailey.

Price, the stories stated, had confessed her involvement in McConville’s murder, and also alleged that the Sinn Féin president Gerry Adams was her “officer commanding” at the time. A similar allegation against Adams, it emerged, had been made by Brendan Hughes, a former IRA commander who died in 2008.

Adams, who has always denied being an IRA member, has repeatedly and emphatically denied having anything to do with McConville’s death.

The newspaper interviews with Price are shrouded in some controversy because Price, who has acknowledged that she suffers from post-traumatic stress disorder, was said to be in ill health at the time. The journalists involved stand over their reporting.

Price, crucially, also acknowledged that she had told a similar story about McConville to the BC researchers. More than a year after the newspaper stories appeared, the British government, acting under the terms of a treaty with the US, sought a subpoena to prise the materials from Price’s BC interviews out of the college’s library and into their own possession.

The British also sought materials gleaned from interviews with Hughes. Last August, this was followed by a further set of subpoenas seeking, from the entire Belfast Project archive, “any and all interviews containing information about the abduction and death of Mrs Jean McConville”.

Cue legal mayhem.

BC’s governing trustees gave up the Hughes materials, because he had died. They challenged the subpoena pertaining to Price and lost. The college has an appeal pending about the other, broader set of subpoenas, but it is not appealing the order that it should give up the Price materials.

“The reality is Dolours Price had given an interview with the Irish media in which she had implicated both herself and Gerry Adams in the abduction and murder of Jean McConville,” Dunn, the BC spokesman, told The Sunday Business Post. “It made the notion of appealing to the court to protect her confidentiality less than compelling.”

But the prospect of giving up any material is anathema to Moloney and the researcher whom he employed to conduct the IRA interviews: the writer and political analyst Anthony McIntyre, himself a former IRA prisoner.

The two men, bitterly disappointed at BC’s actions, are taking their own legal measures to try to keep the tapes under wraps.

Moloney and McIntyre view the trust between themselves and their interviewees as sacrosanct. To give up the materials would amount to a betrayal of their ethics as journalists and academics, they say.

The duo suffered a considerable setback earlier this month when an appeal they had lodged was turned down by a US court. According to McIntyre, they will now seek what is known as an en banc hearing, in which all of the judges on the US’s First Circuit, rather than just the three who rendered this month’s verdict, consider a case.

There is no guarantee that the en banc hearing will be granted, however. If it is refused, McIntyre and Moloney have the possibility of appealing the case all the way to the US Supreme Court. They are simultaneously pressing their case through a judicial review in the North.

Amid all the legal wrangling, there are more basic concerns. If the Price tapes – or other interviews – are given up, people named in those tapes would be exposed to legal jeopardy. That, after all, is the whole point of the exercise from the British government’s perspective.

Such an outcome would be seen in certain districts of the North as Moloney and McIntyre having handed the British authorities a gift. The finer points of the argument as to whether the two men had been hung out to dry by BC would probably not be of paramount importance to aggrieved republicans.

Moloney now spends much of his time in New York, but McIntyre, who left west Belfast for Drogheda, is less distant from anger. A neighbour’s house in the Co Louth town was attacked with excrement in 2010, a bizarre occurrence that he says gardaí ascribed to a case of “mistaken identity”.

Around the same period, media reports alleged that republicans in Belfast were threatening that McIntyre would face a similar demise to that suffered by Eamon Collins, an IRA informer-turned-author who was killed in brutal fashion in Newry in 1999. Although Sinn Féin has in the past denied that McIntyre faces any threat, he told The Sunday Business Post that he and his American-born wife Carrie Twomey are “extremely worried” about the implications, if the US courts continue to rule against them.

“If this stuff gets turned over, the situation will get very dangerous for us,” he says.

Professor Richard English, a historian who has written extensively about the IRA, agreed. English is concerned about the possible implications of adverse court rulings on future oral history projects – and also about the safety of McIntyre and Moloney.

“There is always a risk in the North that some outlier might seek to punish someone they consider to have transgressed a code of secrecy,” English says. “I think the mainstream groups from the Troubles will not sanction violence in this instance. But there are more marginal figures who might perhaps want to settle some scores.”

A knotty enmity

To say the BC case is knotty hardly does it justice. From every perspective, complication is piled upon complication. To take just one example, both Moloney and McIntyre have, on occasion, vigorously criticised Sinn Féin’s leadership.

Now, however, in the process of defending the confidentiality of the Belfast Project interviews, the two men profess considerable concern about the implications for the “pro-peace” elements of the republican movement – and the peace process itself – if the American courts rule against them.

The personal enmity between Moloney and Gerry Adams is common knowledge among the North’s political observers. McIntyre for several years ran a website, The Blanket, which served as a forum for debate among republicans, many of them dissatisfied with the direction of the peace process.

Still, Moloney stated in one affidavit relating to the BC matter: “Dissident opponents of the pro-peace party within the IRA . . . will find only hope and comfort if the oral history tapes are handed over to the PSNI, especially if criminal charges follow.”

And what of the motives of the British government in seeking the release of the tapes? The whole British effort to get the Belfast Project materials could, on the one hand, be a sincere effort to bring McConville’s killers to justice. The specifics of the British stance are hard to divine because the full request to the American government to issue the subpoenas remains sealed. But it seems safe to presume that the authorities would couch their request in terms of the desire to see the law enforced.

Since the Good Friday Agreement, however, the powers-that-be in the North have been generally circumspect about pursuing prosecutions for acts relating to the Troubles carried out prior to 1998. Such prosecutions are not impossible or unprecedented, but they are rare.

Even such a staunch Adams critic as McIntyre wonders whether the true purpose of the BC subpoenas could be to publicly embarrass the Sinn Féin leader – “to fuck Big Gerry over,” as McIntyre pithily puts it – or at least to seek a bargaining chip with Sinn Féin.

The British, he posits, could be “trying to bounce Sinn Féin into making a serious contribution to addressing the past. The Tories do not want troops in the dock [for their actions on Bloody Sunday or elsewhere] and there might be an idea of saying to Sinn Féin, ‘Well, if that happens, then this will happen’.”

The legality of confidentiality

The key legal issue in the BC case is under what circumstances academic researchers – or reporters – can uphold promises of confidentiality to sources.

Given the United States’ expansive press freedoms under the First Amendment – freedoms that makes libel cases much easier for the media to defend than in Ireland or Britain – a common misconception has taken root. It is the idea that journalists – or, in the BC case, academics – have a near-absolute right to honour promises of confidentiality.

This is simply untrue, as the most recent verdict rejecting Moloney and McIntyre’s arguments makes clear. The US Supreme Court long ago set a powerful precedent in these matters.

The case, known as Branzburg v Hayes (argued and decided in 1972, the same year as Jean McConville’s death) brought together a handful of instances in which reporters were being pressured to give up sources who may have been involved in, or at least witness to, illegal activity.

The reporters argued, in essence, that the mere fact that they were journalists meant that they could decline to testify before a grand jury, for fear of incriminating their sources. They lost, albeit by the closest possible margin of 5-4.

“We cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it,” Justice Byron White ruled, for the majority.

Another judge offered a concurring opinion but with a caveat: “If a newsman believes that the grand jury investigation is not being conducted in good faith, he is not without remedy,” Justice Lewis Powell stated, going on to say that a request for disclosure could be quashed if a reporter had “reason to believe that his testimony implicates confidential source relationship without a legitimate need of law enforcement”.

In the BC case, Moloney and McIntyre contend that the British government is not acting in ‘good faith’. The courts have not proven receptive to that argument so far.

The duo’s legal team would also prefer if the courts paid greater notice to a later case, albeit one which did not ascend to the lofty heights of the Supreme Court.

In 1998’s Cusumano v Microsoft, the US Court of Appeals held that the giant software corporation could not obtain what it wanted: the notes, tapes and transcripts acquired by researchers who were writing a book about the “browser wars” between Microsoft’s Internet Explorer and a rival, Netscape Navigator.

Microsoft said it wanted the materials in order to help defend itself in a civil case regarding alleged abuse of its dominant market position. The judges at an earlier stage in that process found that Microsoft’s imperative to have the information “though real, was not great”.

But, even in the Microsoft case, the court was crystal-clear that no absolute right of confidentiality existed. Instead it ruled that, on a case by case basis, “courts must apply a balancing test” weighing the imperative for disclosure against the desire for confidentiality.

The judge who delivered the ruling on Moloney and McIntyre’s case offered a stark verdict. “The choice to investigate criminal activity belongs to the government and is not subject to veto by academic researchers,” Chief Judge Sandra Lynch held.

Even the slightly more favourable opinion offered in the Moloney and McIntyre suit by Circuit Judge Juan Torruella did not provide much real grounds for optimism for the duo. Torruella basically said that the other members of the court had gone too far in suggesting that “the First Amendment does not provide some degree of protection”. But he still endorsed the idea that the court needed to conduct a balancing act – and that Moloney and McIntyre were on the losing side of that argument.

He added that, where serious crimes were concerned, the Supreme Court had already determined that even if the First Amendment offered limited protection to reporters or researchers, it was “insufficient to overcome the government’s paramount concerns in the present context”.

The college and the controversy

These debates may sound dry or arcane to some, but they go to the heart of a more messy and human story: the way in which Moloney and McIntyre are now at loggerheads with BC.

The extent to which relations have broken down is evident in interviews given to The Sunday Business Post.

Shorn of the most vituperative elements, the division is one in which Moloney and McIntyre feel BC has failed to fight hard enough against the subpoenas, while representatives of BC feel that the two Irishmen are trying to deflect attention from their own responsibility for the legal farrago.

Both sides are now expending considerable effort in arguing over the negotiations that marked the Belfast Project’s earliest days.

Under one interpretation – the one favoured by Jack Dunn and, presumably, others at BC – the university warned Moloney at an early stage that no absolute guarantee of confidentiality could be given to anyone. They suggest by implication that it was his fault if those qualifications were not passed on to those who agreed to be interviewed.

Under the other interpretation – that emanating from Moloney and McIntyre – BC totally agreed with the guarantee of confidentiality but, now that the heat is on, is trying to get out of it.

Both sides can marshal evidence to support their case.

BC now places a lot of stress on the contract that was signed on January 31, 2001, codifying the agreement between Moloney and BC. It states that each person interviewed is “to be given a contract guaranteeing to the extent American law allows the conditions of the interview”.

The reference to the primacy of American law, according to Dunn, means that “clearly – clearly! – [Moloney] was told in advance that there were limits to confidentiality based on American law”.

He adds: “To say that assurances of confidentiality were given by Boston College is completely specious. There is absolutely no truth in that statement whatsoever. ”

But is it? While it is apparently accurate that no one from BC made direct promises to any interviewees, court documents – in particular affidavits from senior figures at the university – seem to suggest that they were, at the least, acquiescent in those promises being made.

For example, in an affidavit dated June 2, 2011, Thomas E Hachey, the director of Boston College’s Centre for Irish Programs, said that, at the start of the project, he was unsure how many people would be willing to participate.

But, he added under oath, “the opportunity to gather testimony for posterity that would be kept strictly confidential during the interviewee’s lifetime and retained in a collection that would be housed in Boston, rather than Belfast or Dublin, prompted more involvement by paramilitary veterans than we might otherwise have expected”.

He went on to outline his belief that Moloney had required interviewers to convey to participants “the absolute promise that their accounts would be kept confidential until the demise of the individual providing the testimony . . . I believe that few, if any, of the interviewees would have agreed to participate without such assurance”.

The affidavit contains no suggestion that Hachey thought Moloney was being reckless or cavalier in pushing such a pledge.

McIntyre, for his part, is adamant that “the very first stumbling block” when he was considering becoming involved in the project was the question of how confidentiality could be assured. “Without that, it was a non-starter,” he recalls.

The dispute has left relations between the men and the college seemingly beyond repair.

“Boston College has behaved totally unscrupulously through all of this,” says McIntyre.

Dunn counters: “When it became a problem, instead of accepting responsibility, Mr Moloney and Mr McIntyre have literally gone on a full-scale publicity campaign to deflect responsibility from themselves. The old adage of ‘beware he who doth protest too much’ . . . ? I think that is becoming abundantly clear.”

Beyond the heated words, unaligned historians fear that the whole BC issue will prove a deterrent to cooperation with academic inquiries in the future.

“One of the crucial aspects of research into violent conflict is trust between researchers and interviewees,” says Richard English. “If people to be interviewed fear that what they say will become public, despite reassurances from the researcher, then their honesty and openness in research situations will become narrowed down.”

What happens next is not certain. At the time of going to press, it was unclear whether Moloney and McIntyre’s request for an en banc hearing would be fulfilled. BC expects a decision on its attempt to resist the broadest subpoenas – those relating to requests for all material relating to the McConville killing – in the autumn.

Dunn says of that case: “We think this appeal is crucial. The notion that, because we didn’t defend the indefensible regarding Dolours Price, we somehow aren’t committed to this, is an insult.”

He is also scathing of Moloney and McIntyre’s separate legal efforts, saying of this month’s verdict that “we knew it was a case that could not be won” and that it “didn’t help our cause at all”.

While all the legal arguments turn, the family of McConville still wait for justice.

Whether they will receive a measure of it, whether their mother’s killing will go unsolved or whether the whole dark episode will become a pawn in a bigger game remains to be seen.

Attempts by this paper to contact the most publicly prominent member of the family, her daughter Helen McKendry, were unsuccessful.

McIntyre says he feels sympathy for McConville’s relatives. But he adds that those emotions do not erase his other responsibilities.

“I have every sympathy with the McConville family,” he says. “But it is not my job to provide evidence to other people and in doing so breach a promise of confidentiality.”

Secretary of State for Northern Ireland Owen Paterson interviewed on RTE about Boston College case
RTÉ Radio 1Today with Pat Kenny
Thursday 19 July 2012

Pat Kenny (PK) interviews Northern Ireland Secretary of State Owen Paterson (OP). This transcript is a segment of the interview discussing The Belfast Project, the oral history archive at Boston College.

Pat Kenny (PK): Another issue which crosses your desk would be that issue of Boston College and the recollections which were given in confidence to the researchers and which now are to be released, or part of them to be released, to the PSNI.

There’s a kind of a worrying precedent about that. I mean, it is a court finding, but there’s a worrying precedent about even seeking information which is given in confidence for historical purposes.

The British government itself has its thirty year rule and its fifty year rule and its one hundred year rule – things that are so sensitive that you’ve got to make sure that people are long dead and buried, their relatives and their grandchildren, before it’s released. So the principle is well established.

Owen Paterson (OP): Well, actually as a government we’re going down from thirty year rule to a twenty year because we are in favour of transparency.

Boston College is a genuine, real problem. It’s a clash of very two very important themes.

I mean, I’ve been there. I’ve met Thomas Hachey. I was really impressed with what they are doing. And I’m very taken by the idea of establishing oral archives and capturing a pool of data and information and stories which historians can then work on.

And actually when I went over to Saint Patrick’s in March, I went to North Carolina to see The Civil Rights oral archive there. And I think that there’s real merit I think in encouraging people to come forward to oral archives while they’re still alive because of course many of the participants are sadly getting older and their memories are getting more faulty.

And I’m quite relaxed that the information you’d get would be completely subjective, people may have an axe to grind, it may be faulty.

But that’s not a problem. Let’s just get all this information recorded and then let historians loose…

So the broad principle of what they were doing I was very much in favour of. And of course the idea that there was effectively an amnesty of death – that nothing would be published until someone was dead – was a very interesting idea.

But, and there’s an enormous BUT that comes in here, we have always said that the rule of law must prevail and that the police have and absolute duty to follow up every possible lead seeking justice for victims and relatives of victims.

And here you have a clash of two massive principles.

So we have always strictly respected the operation and the independence of the police.

And the first I knew about this move was when I read about it in the newspapers. We knew absolutely nothing about this.

So this was treated as a routine approach by the PSNI who went to the Home Office, who are the normal liaison ministry working with foreign jurisdictions, and the Home Office, I think quite rightly, didn’t interfere either.

Because if the PSNI seriously think have a lead which could lead to information which could lead possibly to a further process which could bring justice for a victim, and don’t forget how the relatives of the victims have suffered terribly over the years as well, I think The Home Office was quite right to stand back. They never told us. And we read about it in the newspapers.

PK: Anything that is given to the historians by people who are now deceased has no evidential value because it literally is the subjective recollections of somebody who could, in theory, be self-serving…wanting to write their own version of history.

But where there are living people who have given in confidence information then of course they can be sworn in evidence and convictions or otherwise may ensue.

But it’s the principle that people want to give it while they’re alive, want to give their version of things and then find themselves subject to some sort of policing and judicial process.

It’s deeply uncomfortable and it may inhibit the writing of a true an accurate history. Before you came on we were talking to T. Ryle Dwyer about the activities of Michael Collins and Winston Churchill. And it’s good that we can know the full truth of what they were at. But it would not have been politic for Lloyd George to admit the goings-on at the time.

OP: No, I think you’ve explained it very, very clearly: that there is a real conundrum here.

It would be very good for future generations to have completely open, unrestricted recollections. You’re quite right, people might have an axe to grind. And I’m absolutely not a lawyer, but you’d have to wonder what the evidential value is of possibly some of these submission which are not made on oath or may not have proper witnesses and all the rest of it – and that’s for lawyers to determine.

But I think as a way of resolving the past I think we also have to recognise there is a massive interest in trying to get justice for victims and the benefit that brings to their relations. So I think we probably have to accept that I think that probably does override the academic interest in having an absolute and pure unadulterated record.

PK: We have this constructive ambiguity, the phrase so famously used Tony Blair and so famously practised by Bertie Ahern you know…Gerry Adams was never a member of the IRA, he says so therefore objectively that’s supposed to be a fact…Martin McGuinness left the IRA at a particular time and we find that a “convenience” whether it is true or otherwise.

And then you have this process which conspiracy theorists say are deliberately brought about to bring Gerry Adams into the frame for the disappearance of Jean McConville.

So sometimes things are a convenience and we indulge in constructive ambiguity and allow our systems to proceed to a particular end but this one seems to run counter to that process.

OP: I think you’re absolutely right.

We can get back to our earlier comments…that it’s absolutely central to the whole process that people should pursue their ambitions by legitimate, democratic means. And that is now happening.

But I think on the conundrum we face, it is very important to see that the police have a duty to victims. They have to pursue every single lead. And there’s no way this is a conspiracy. I mean, I knew absolutely nothing about this.

PK: So they have utter autonomy in this regard?

OP: Yeah, absolutely and we’ve always respected that and that’s absolutely fundamental – and it gets back to our comments on the earlier subject we were discussing. You’ve got to have an independent police who have no political interference. You’ve got to have a judicial system with no political interference.

So I knew absolutely nothing about this.

I’d be extraordinarily stupid to try to interfere in any way with any sort of possible political goal. There cannot be any of this. This has to be the police pursuing a lead and fulfilling their duty to the victims and the victims’ families.

SITE MAP

The value of the Oral Tradition is its democracy; it doesn't give to an intellectual elite the exclusive right to shape a communal memory and the collective memory. It makes into a common wealth the story of our shared lives. It's something that we share in common – and it's like a collection plate into which we can all put something: our stories, our myths and the ease with which we are able to, in some way, cross boundaries. - Cleophus Thomas, Jr.

First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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